APPEAL from an order of the Superior Court of Los Angeles County. Mel Red Recana, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC406194).
The opinion of the court was delivered by: Ashmann-gerst, J.
CERTIFIED FOR PUBLICATION
Thomas Mundy (Mundy) appeals the denial of his Civil Code section 55*fn1 motion for attorney fees in connection with a suit to force a land owner to install a designated van-accessible handicap parking space. Even though he filed a dismissal with prejudice when the land owner installed the parking space, Mundy argues that he is entitled to his attorney fees under a catalyst theory because his lawsuit motivated corrective action that inures to the public benefit. We affirm because he did not attempt to settle prior to filing suit and was not the prevailing party under Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 577 (Graham).
Mundy sued Orlene L. Neal as trustee of the Orlene L. Neal Family Trust (Neal) for violating various state and federal laws designed to protect the civil rights of people with disabilities and alleged: Mundy is wheelchair bound and the trust owns a parking lot that accommodates an automotive service station. On December 1, 2008, Neal refused to provide Mundy and his class of disabled individuals with a designated van-accessible handicap parking spot.
Neal entered a general denial.
In Neal's case management statement, she averred: the trust's tenants did not have a disabled parking space. Neither the tenants nor Mundy ever informed Neal of the problem. She first became aware of the problem when she was served with Mundy's complaint. Neal researched the issue, learned of the need for the disabled parking space, and had the space installed. Mundy did not give Neal an opportunity to remedy the problem before filing suit.
Mundy dismissed the case with prejudice and filed a motion requesting an award of $3,409.50 in attorney fees pursuant to section 55. The trial court denied the motion.
This timely appeal followed.
The sole issue presented is whether Mundy should have been awarded attorney fees under section 55. Section 55 provides: "Any person who is aggrieved or potentially aggrieved by a violation of Section 54 or 54.1 of this code, . . . may bring an action to enjoin the violation. The prevailing party in the action shall be entitled to recover reasonable attorney's fees."*fn2 (§ 55.) Whether a statute requires a trial court to award attorney fees is a legal question we review de novo. (Childers v. Edwards (1996) 48 Cal.App.4th 1544, 1547.)
The pivotal question is whether Mundy was the prevailing party. "[U]nless the context clearly requires otherwise," a defendant in whose favor a dismissal is entered is the prevailing party. (Code Civ. Proc., § 1032, subd. (a)(4).) One such context is where a lawsuit pursuant to sections 54 or 54.1 "was the catalyst motivating the defendants to modify their behavior or the plaintiff achieved the primary relief sought. [Citations.]" (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 185 (Donald); Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 790 (Molski).) This rule grew out of cases decided under Code of Civil Procedure section 1021.5, the private attorney general statute. (Donald, supra, 218 Cal.App.3d at p. 185.) We therefore turn to catalyst theory case law decided under that statute to guide our analysis.
A few decades ago, our Supreme Court held that an award of attorney fees under Code of Civil Procedure section 1021.5 is not barred simply because a case was settled before trial. A court must ask whether the plaintiff's lawsuit substantially contributed to the enforcement of an important public right, or whether a defendant would have complied with the law absent legal action. (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 685.) Recently, in Graham, which was also decided under the private attorney general statute, the court held that the catalyst theory cannot be invoked unless the plaintiff made a reasonable attempt to settle the matter short of litigation. (Graham, supra, 34 Cal.4th at p. 577.)
As Mundy concedes, he did not attempt to settle the case before filing it. Under Graham, he was ...